George T. Elliott, Respondent, v. Benjamin S. Bidwell, Appellant

George T. Elliott, Respondent, v. Benjamin S. Bidwell, Appellant. (Submitted May 22,1872; decided September term, 1872.) This action was brought to recover the possession of 120 barrels of flour, shipped by plaintiff to Buffalo to his own account, care of J. G. Oittel. Plaintiff wrote Oittel, in substance, that he could have the flour at thirteen dollars per barrel; and if he did not take it, to take care of it until he directed it sent elsewhere. This letter Oittel did not answer; but, before the flour reached Buffalo, he gave defendant an order for 120 barrels, to replace that amount borrowed by him. By virtue of this order defendant took the flour and refused to deliver it to plaintiff upon demand. Held, that Oittel had no title or apparent right to sell, and could give defendant no title; that defendant was not protected by the factors’ act (chap. 179, Laws of 1830), as Oittel had no documentary evidence of title and no possession at the time he gave the order. L. Le Clear for the appellant. Lyman K. Bass for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for affirmance. All concur. Judgment affirmed.